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[2010] ZALCCT 32
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City of Cape Town v South African Local Government Bargaining Council and Others (C654/2009) [2010] ZALCCT 32 (12 January 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN CAPE TOWN)
Reportable
and of interest to other Judges
CASE
NO C654/2009
In
the matter between:
CITY
OF CAPE
TOWN APPLICANT
And
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL 1
ST
RESPONDENT
PANELIST
D.P VAN TONDER
NO 2
ND
RESPONDENT
SOUTH
AFRICAN MUNICIPAL WORKERS UNION 3
RD
RESPONDENT
JUDGMENT
AC
BASSON, J
[1]
This is an application to review and set aside an
in limine
ruling by the second respondent (“the arbitrator”). In
terms of the ruling the arbitrator found that the 1
st
respondent (“the council”) has jurisdiction to arbitrate
an “essential services” dispute. On 18 August
2010 this
court reviewed and set aside the ruling and replaced it with a
finding that the first respondent has no jurisdiction
to hear the
dispute. The court also ordered that there should be no order as to
costs. Here are the full reasons for my order.
[2]
I do not intend summarising the history of the dispute in detail.
Suffice to point out that the dispute has a long history dating
back
to 2000. A large number of disputes have been lodged relating to the
formation of the City of Cape Town and the city’s
plans to
restructure the organization.
Referral
to conciliation
[3]
A dispute was referred to the council for conciliation about the
refusal
of the applicant (City of Cape Town - hereinafter
referred to as “the city”) to
bargain
on a set of
demands tabled by the applicant. The following demands were contained
in a letter which was also attached to the referral
form:
(i)
the City halt the implementation of the placement process adopted
by
the city.;
(ii)
the city must stop relocation of workers pending the finalization of
a placement agreement;
(iii)
the status quo on conditions of service on the same terms as at
November 2006
must be restored; and
(iv)
the city must enter into talks to renegotiate a new settlement
agreement on
the organograms and placement process.
(I
will refer to these issues collectively as the “
listed
issues
”.)
[4]
The dispute was conciliated on 9 November 2007 but could not be
resolved. What dispute was in fact conciliated will be considered
hereinbelow. Commissioner Martin presided over the conciliation
proceedings. He issued an
advisory award
(on 23 November 2007)
and also issued a certificate out outcome (dated 26 November 2007)
which certified that the dispute remained
unresolved as at 26
November 2007 and indicated on the certificate that the dispute may
be referred to a strike. Commissioner Martin
further recorded on the
certificate of outcome that the dispute was between SAMWU and the
City of Cape Town and that the dispute
was in respect of an alleged
refusal to bargain
by the City of Cape Town.
Commissioner Marin further recorded in his advisory award that the
issue in dispute was the
refusal to bargain
. It is further
also clear from the advisory award that the award was issued in terms
of section 64(2) of the LRA (which specifically
deals with disputes
about the refusal to bargain).
[5]
In the application (referral) for conciliation it is specifically
recorded (on behalf of the members of SAMWU) that the employer
is
refusing to bargain with the union on a set of demands table. The
referral form further recorded the desired outcome of the
conciliation to be:
(i)
Firstly, that the employer (the city) bargain with the union
on the
listed matters; and
(ii)
Secondly, that an advisory award be issued in terms of section 64(2)
of the LRA.
[6]
The referral to conciliation makes no mention about the fact that the
referral was in respect of both essential and non-essential
service
employees nor does the referral mention that compulsory arbitration
may follow unsuccessful conciliation in respect of
essential service
employees (as contemplate by section 74 of the LRA).
Strike
[7]
On 18 January 2008 SAMWU issued a strike notice and called out a
strike of all its
non-essential service members
. The notice
called on the city to bargain with SAMWU’s on certain demands.
Referral
to arbitration by the essential services employees
[8]
On 6 February 2008 SAMWU apparently changing tact, then referred a
dispute to arbitration
in terms of section 74(4)
in respect of
its
essential service
members. In the referral form it is
recorded that the dispute is about the inability on the part of the
parties to reach agreement
on matters of mutual interest primarily
involving the city’s restructuring process. The referral refers
to the strike action
commenced by non-essential services members and
states that the subject matter of the current strike action are the
same as those
on which SAMWU now wished the council to arbitrate. In
the referral to arbitration it is also stated that the parties were
unable
to reach agreement on matters of mutual interest.
[9]
When the matter came before the 2
nd
respondent (Arbitrator
Van Tonder) four objections to the jurisdiction of the council were
raised on behalf of the city:
(i)
there was not proper referral to arbitration in the sense that the
dispute
that was referred to arbitration is
not
the same
dispute and not in respect of the same employees than the one that
was referred to conciliation.
(ii)
The 30 day time limit referred to in section 139(1) of the LRA was
not
complied with.
(iii)
This dispute cannot be arbitrated in terms of section 74 of the LRA
because
the applicant’s members had already embarked on strike
action in respect of the same demands.
(iv)
The applicant cannot expect to achieve something in an interest
arbitration
that it could not achieve through strike action.
[10]
This essential services dispute was referred to arbitration in terms
of section 74(4) of the LRA without first referring the
dispute on
behalf of its essential services members to be conciliated under the
provisions of section 74(1) of the LRA as a precursor
to a referral
to arbitration. As will become more apparent, SAMWU’s argument
(and accepted by Arbitrator Van Tonder) was
that it need not refer
the dispute to conciliation as the dispute has already been
conciliated by Commissioner Martin.
[11]
It was this referral that was met with an
in limine
application. The arbitrator dismissed the
in limine
attack on
the jurisdiction of the council and ruled that the arbitration
proceed on the
merits
(i.e the substance of the listed
demands). It is this ruling that is the subject of the review.
The arbitrator held,
inter alia
, as follows:
“
[54] In respect
of the employees in essential services however, there was no need for
applicant to refer to any statutory provisions
in the referral form
to conciliation, because in respect of those employees it was
unnecessary to take any further procedural steps
apart from
conciliation. When a dispute about a refusal to bargain with
employees in essential services cannot be resolved at conciliation,
the next logical step in terms of the LRA for such employees, is to
refer their dispute for arbitration in terms of section 74.
There
is accordingly no reason why respondent should not have known that an
arbitration in terms of section 74 may follow should
the dispute not
be resolved at conciliation.
……
.
[56] In the
circumstances, I am satisfied that the manner in which the dispute
was referred did not preclude the parties at conciliation
from
ventilating the dispute in respect of both the employees in
non-essential services and the employees in essential services.
The
referral was clearly wide enough to ventilate the dispute in respect
of both categories of employees at conciliation. “
[1]
[12]
On behalf of SAMWU it was argued before the arbitrator that it was
indeed the same dispute in respect of the same employees
that was
referred to conciliation and arbitration and that the only difference
was that the employees in non-essential services
are not included in
the referral to arbitration. It was further argued that there exists
no reason why a union cannot call out
a strike in respect of its
employees in non-essential services while at the same time referring
a dispute in respect of the same
issue to arbitration in respect of
its members in essential services.
[13]
The arbitrator dealt with each of the complaints comprehensively and
arrived at the conclusion that the council has jurisdiction.
I do not
intend to discuss the judgment in detail except where it is necessary
to do so. Suffice to point out that all the points
in limine
were dismissed. What is, however, important to restate is the fact
that the arbitrator was of the view that it has jurisdiction
to
arbitrate the interest dispute (the listed demands). As will come
clear later in the judgment, I have concluded that these issues
(the
listed demands) were not subjected to the conciliation process. The
only issue before the conciliator was the city’s
refusal to
bargain.
[14]
In essence the arbitrator found the following:
(i)
the council had jurisdiction to arbitrate the dispute.
(ii)
the fact that the arbitration may be academic because the union
cannot
hope to achieve by an essential service arbitration what it
could not achieve through the non-essential service employee strike
was not relevant to the issue of jurisdiction but should be treated
as part of merits of the dispute.
(iii)
there is no merit in the argument that a union must make an election
about
whether or not it wishes to embark on a strike (calling out the
non-essential services members) or to refer a dispute to arbitration
in respect of the essential services members in circumstances where
the same dispute is raised in respect of both essential services
and
non-essential services employees.
(iv)
the special provisions for arbitrating disputes in essential services
contained
in section 139 of the LRA (and specifically made applicable
to essential services arbitrations under the CCMA) are not generally
applicable to proceedings before bargaining councils. The arbitrator
further held that even if he was wrong, in his view and section
139(1)(a) was applicable, it will not deprive the bargaining council
with jurisdiction as it would lead to harsh and absurd consequences.
(v)
the dispute that had been conciliated before the commencement of
the
strike was
the same dispute
as the one that formed the subject
matter of the essential services arbitration.
The
review
[15]
The jurisdiction to arbitrate a dispute in essential services derives
from the provisions of section 74 of the LRA and more
specifically
sections 74(3) and (4) of the LRA. In terms of section 74 of the LRA
a council (or the CCMA if no council has jurisdiction)
the following
requirements must be satisfied:
(i)
The referring party must be a party to a dispute that is precluded
from participating in a strike because that party is engaged in an
essential service.
(ii)
The council must attempt to resolve the dispute through conciliation.
(iii)
If the dispute remains unresolved, the party may request that the
dispute
be resolved through arbitration.
(iv)
The dispute must be a dispute concerning a matter of mutual interest.
Was
there any referral to an essential services arbitration which was
competent in law?
[16]
Arbitrator Van Tonder was of the view that the certificate of outcome
that was issued by Commissioner Martin can subsequently
be used by a
union should it so wish as proof that there has also been
conciliation as contemplated under section 74(3) of the
LRA. I am, in
principle in agreement (despite certain reservation – see
hereinbelow) with this finding provided that the
issue referred to
arbitration (in terms of section 74 of the LRA) is the same dispute
or issue that was subjected to conciliation
irrespective of whether
the dispute was referred to conciliation. Put differently, it is not
fatal to the process of referring
a dispute to interest arbitration
in terms of section 74 of the LRA that the dispute was referred to
conciliation in terms of section
64(1) of the LRA and not section
74(1) of the LRA. (See, however, paragraph [33]
infra
.)
[17]
Parties engaged in essential services are precluded from
participating in a strike as a mechanism to resolve an interest
dispute.
Parties engaged in non-essential services may, however
(unless the parties have agreed to refer the dispute to arbitration),
resort
to industrial action as a mechanism to resolve an interest
dispute. A party to an essential service dispute who refers a dispute
to the council is calling upon an arbitrator to resolve the impasse
between the parties through arbitration and is effectively
requiring
the arbitrator to determine the outcome of the interest dispute
between the parties by issuing an award which will be
binding upon
the parties.
[18]
Where a (non essential service) party wishes to resort to strike
action as a mechanism to resolve a dispute, the dispute must
be
referred to conciliation in terms of section 64(1) of the LRA. Once
conciliation has failed the parties may then give notice
and
thereafter embark on strike action. A party to a dispute in an
essential service will refer the dispute to conciliation in
terms of
section 74(1) of the LRA and once conciliation fails, refer the
dispute to arbitration in terms of section 74(4) of the
LRA.
[19]
Can a party to an essential services dispute who wishes to refer a
dispute to arbitration in terms of section 74(4) of the
LRA simply
rely on a referral to conciliation in terms of section 64(1) of the
LRA thereby circumventing the dispute resolution
procedures provided
for in section 74(3) of the LRA? As already indicated, despite
certain reservations and despite the fact that
the LRA specifically
provides for conciliation procedures in terms of section 74(2) of the
LRA in respect of an essential service
dispute, I am nonetheless of
the view that, in principle, nothing prevents a referring party from
relying on a certificate of outcome
to refer a dispute to essential
service arbitration despite the fact that the dispute was not
referred to conciliation in terms
of section 74 of the LRA.
[20]
Moreover, I am in agreement with the finding that, on a proper
reading of the LRA, there is no support for the principle that
a
union must make an election about whether it wishes to embark on a
strike or refer a dispute to arbitration where the same dispute
is
raised on behalf of both essential services and non-essential
services employee. In other words, there is nothing in the LRA
that
requires a referring party to make an election in respect of the
method
the union intends to use to resolve the impasse as the
LRA provides for strike action as a mechanism to resolve a dispute in
the
case of non-essential services employees and compulsory
arbitration in respect of essential services employees. Furthermore,
no
mention is made in the LRA to suggest that essential service
employees lose their right to arbitration simply because their
non-essential
service colleagues have seized the opportunity to
strike. The LRA is clear: any essential service employee may request
that a dispute
be resolved through conciliation and thereafter
arbitration should the parties not settle the dispute. There is in my
view no exception
or restrictions to the right of essential services
employee in the manner suggested by the city. See
NEHAWU &
Another v Public Health & Welfare Sectoral Bargaining Council &
Others
(2006) 27
ILJ
1829 (LC) where the court found that
a trade union could call its other (non-essential) members out on
strike in support of the
demand of an individual employee who was
part of an essential service. At the same time, the individual
employee retained the right
to have his dispute determined by way of
an essential service arbitration. A party to a dispute who is
precluded from striking
because he or she is engaged in an essential
service is therefore entitled to refer that dispute to conciliation
and thereafter
to arbitration under section 74. In
South African
Police Service v POPCRU & Others
(unreported decision:
J1444/2007) the court sanctioned the right of certain employees to
strike and others to arbitrate over the
same dispute. In this case
the SAPS sought to interdict all of its employees from striking
because the police service is deemed
to be an essential service. SAPS
argued that it did not matter what job description an employee held
whether it was a tea lady,
cleaner or uniformed officer, as all
personal in the SAPS render an essential service by reason of being
in the SAPS employ. The
court held that not all employees of SAPS
render an essential service and are thus not all prohibiting from
participating in strike
action. The court also rejected the SAPS’s
submission that any order that some personnel of SAPS render
non-essential service
and may strike while others may not by reason
of rendering an essential service would be “enormously
difficult” to
implement. The court only interdicted “members”
of the SAPS from striking and allowed those employees of the SAPS who
did not perform essential services to participate in the strike.
Nothing therefore precluded the “members” of
the SAPS who
were prohibited from striking from exercising their rights under
section 74 by referring the dispute to arbitration.
[21]
I am further of the view, as already indicated, that it is also not
fatal from a procedural point of view, if the union refers
a dispute
to conciliation in respect of non-essential services employees and
essential services employees. To hold otherwise will,
in my view, be
unduly formalistic and may lead to a duplication of the conciliation
process where the dispute involves both essential
services employees
and non-essential services employee.
[22]
In principle I am therefore in conclusion of the view that it would
also be unduly technical and formalistic to insist that
a referring
party refer a dispute to conciliation in terms of a specific (or the
correct) section of the LRA. The question should
rather be whether or
not the dispute between the parties was conciliated irrespective of
the section in terms of which the dispute
was referred. Having said
this, I must, however, raise one issue of concern. There is, in my
view, a practical difference between
a dispute that is referred to
conciliation with the option of resorting to strike action in the
event conciliation fails on the
one hand, and, on the other hand, a
dispute referred to conciliation with the option of referring the
dispute to (compulsory) arbitration
in the event conciliation fails.
This difference may in fairness require the referring party to be
more specific in the application
for conciliation in respect of the
nature of the dispute and may also require the referring party to at
least alert the employer
of the possibility of referring the dispute
to compulsory arbitration where the dispute also involves essential
services employees.
I will return to this point hereinbelow.
[23]
Where it is in dispute, or where it is unclear what the issue in
dispute is, or which dispute was in fact subjected to the
conciliation process, the court may be called upon to determine the
issue. In respect of the nature of the dispute it is accepted
that
this court will not approach a referral to conciliation
formalistically and merely accept that the nature of the dispute is
necessarily that what is being characterized in the referral form as
the issue in dispute nor should the conciliator merely accept
the
characterization of the dispute referred to conciliation. The court
is also not bound by the conciliator’s characterization
of the
dispute between the parties in the certificate of outcome. It is
therefore competent for the court to determine what the
essential
dispute or disagreement between parties is and/or whether that
dispute has in fact been conciliated irrespective of the
legal
characterization of particular set of facts. See in this regard
National Union of Metalworkers of SA & OTHERS v Driveline
Technologies (Pty) Ltd & Another
(2000) 21 ILJ 142 (LAC).
[24]
In the present case a dispute regarding the refusal to bargain was
referred to the council and, as will be explained hereinbelow,
it
would appear from the facts that this was indeed the dispute (and the
only dispute) that was subjected to conciliation. However,
when the
matter came before the arbitrator in terms of section 74(4) of the
LRA the arbitrator was of the view that the dispute
that was referred
to arbitration had been conciliated and that there was no reason why
the city should not have known that an arbitration
in terms of
section 74 of the LRA may follow should the dispute not be resolved
at conciliation. I do not agree with this finding.
The dispute that
was conciliated did not concern the substantive issues (the listed
demands) but only concerned the refusal to
bargain. I will now turn
to the reasons for my conclusion bearing in mind what has already
been stated in respect of the characterization
of the nature of the
dispute by the referring party.
What
was the dispute that was referred to conciliation on 27 September
2007?
[25]
I have already referred to the fact that the dispute that was
referred (in the referral form) was a dispute concerning a
refusal
to bargain
by the city with SAMWU on a set of demands that were
tabled. In paragraph 3 of the referral form SAMWU summarised the
facts pertaining
to the dispute as follows:
“
Employer
refusing to bargain with union on set of demands tabled.”
SAMWU
further stated under what it (SAMWU) required to be the result of
conciliation the following:
“
1.
That the employer bargain with the union on listed matters.
2.
An advisory award to be issued i.t.o section 64(2) of the
LRA.”
[26]
The council (Commissioner Martin) then issued the certificate of
outcome in which the nature of the dispute is described as
follows:
“
Refusal to
bargain by the City of Cape Town.”
In addition hereto, the
Commissioner also indicated that the parties to the dispute may now
resort to a strike or a lock-out. The
certificate was furthermore
preceded by an
advisory award
in terms of which Commissioner
Martin identified the issue in dispute as “
Refusal to
bargain
”. Commissioner Martin furthermore recorded in his
advisory award that the advisory award was issued in terms of section
64(2)
of the LRA:
“
In terms of
section 64(2) of the Labour Relations Act 66 of 1996 as amended the
issues stated in the background to the dispute above
are legitimate
bargaining subjects. Accordingly the applicant is entitled to the
certificate of outcome and this advisory award
as the disputer
referred remains unresolved.
The applicant is
however, advised to attempt to further pursue the resolution of this
dispute as the bargaining subjects may be
construed as representing
excessive demands.”
[27]
Consistent with the above, SAMWU then issued a strike notice in terms
of which it stated the following:
“
Please be
advised that the South African Municipal Workers’ Union (SAMWU)
is hereby giving notice in terms of section 64 of
the Labour
Relations Act, act 65 of 1996, as amended, of protected Strike action
in
lieu of the inability on the part of the City of Cape Town to bargain
with the union specific demands tabled which inability is confirmed
in the Salgbc advisory award under case number WCM090709.”
[2]
[28]
It is also significant to point out that SAMWU did not in the
referral document demand that the city complies with the listed
demands, nor did the strike notice demand that the city complies with
the listed demands.
[29]
Lastly it should also be pointed out that in October 2007 the Labour
Court had interdicted a strike which SAMWU had called
in support of
its demands relating to the restructuring. One of the basis for the
interdict was that SAMWU had called a strike
concerning a refusal to
bargain without first obtaining an award. SAMWU thereafter took the
necessary steps to obtain an advisory
award on 26 November 2007 and
the certificate of outcome to ensure that the subsequent strike would
be protected.
[30]
It is therefore, in my view clear from the facts that the dispute
that was referred to the council in fact was a dispute concerning
the
refusal to bargain
:
(i)
Although accepting that the court is not bound by the legal
characterizing of the dispute, the referral form clearly describes in
paragraph 3 the nature of the dispute as one concerning a
refusal to
bargain. The referring party further expressly expanded in the
referral form by stating that the employer refuses to
bargain on a
set of demands.
(ii)
SAMWU specifically requests in the referral form (dated 27 September
2007) that the outcome of conciliating must be that the employer
bargain with the union on the listed matters and that an advisory
award be issued in terms of section 64(2) of the LRA.
(iii)
Consistent with the above, Commissioner Martin issued an advisory
award (dated
23 November 2007) and issued a certificate stating that
the dispute about the refusal to bargain remained unresolved (dated
26
November 2007).
(iv)
Also consistent with the above, the commissioner recorded indicated
that SAMWU
may resort to strike action.
(v)
Further consistent with the above is the strike notice issued
consequently
to the certificate of outcome in terms of which it is
expressly stated that the city is refusing to bargain. Although I
accept
that that the court should not be unduly formalistic, it would
furthermore appear that the dispute that was referred to the council
concerned a dispute in terms of section 64(2) of the LRA which
concerned a refusal to bargain. The certificate issued was
furthermore
clearly issued in terms of section 64(1)(a) of the LRA.
(vi)
The certificate indicates that the parties may now resort to strike
action.
I am in agreement with the city that it appears, at least on
the face of it, that the certificate was issued in terms of section
64(1)(a) in that it sanctions the parties to resort to a strike. I
also accept that on the face of it the certificate does not
purport
to have been issued in terms of section 74(1)(a) of the LRA and does
not make any reference to a referral to arbitration
as a means of
resolving the dispute (although this omission, as already indicated,
does not invalidate the conciliation process).
I am thus in agreement
with the city that it does not appear that, at least at that stage,
the union had planned on resolving the
dispute by means of essential
services arbitration. This conclusion is also, in my view, consistent
with the fact that that union
proceeded to call out a strike amongst
all of its members engaged in non-essential services. I must also
point out that the referral
to conciliation makes no reference to
non-essential services whereas the referral to arbitration refers
specifically to essential
services employees although this omission
is not (despite certain reservations), as already indicated, fatal to
the process. I
am therefore in agreement with the city that it does
not appear from the referral form to conciliation that the
conciliation of
the dispute was a precursor to an essential services
arbitration in the event of the parties being unable to resolve their
differences.
It was only on 6 February 2008 that the union
decided to refer an essential services dispute to arbitration. The
city contended
that the dispute that was referred to arbitration
ought to have been referred to conciliation in terms of the
provisions of section
74(1) as a precursor to a referral to
arbitration.
[31]
It is, therefore in my view clear from the facts viewed as a whole,
that the dispute that served before the council did
not
concern the substance of any of the listed demands. There is no
indication on any of the documents before this court that SAMWU
demanded that the outcome of the conciliation should be that the city
complies with the listed demands nor is there any indication
from the
strike notice that the demand was that the city complied with the
listed demands. The demand forming the subject matter
of the strike
was the demand that the city
bargain
with SAMWU on the listed
demands.
[32]
I am therefore not persuaded that Arbitrator Van Tonder was entitled
to descend into the arena and define his terms of reference
so as to
made the dispute one capable of being the subject matter of an
essential services arbitration and therefore about issues
other than
a refusal to bargain. The arbitrator therefore erred in defining his
terms of reference to include the following disputes:
(i) whether the
city is required to halt the implementation of the placement process;
(ii) whether the city must immediately stop
relocation of workers
pending finalisation of a placement agreement; (iii) whether the
status quo prior to the issuing of placement
letters must be restored
on the terms as at November 2006 and (iv) whether the city must enter
into talks to renegotiate a new
settlement agreement on the
“Organograms and placement process”. These disputes now
incorporated by Arbitrator Van
Tonder as being the disputes of
interest that have been referred to arbitration were never the
subject of the conciliation process.
There is simply no documentary
evidence which supports a finding that the interest disputes that
Arbitrator van Tonder intended
to subject to arbitration are the same
disputes that were referred to conciliation. The dispute referred to
conciliation was about
the refusal to bargain and not the substance
of the listed demands. I am further in agreement with the submission
that there is
a substantial difference between claiming that there
has never been bargaining because a party is refusing to bargain on
the one
hand and on the other hand claiming that, although there has
been bargaining, bargaining has reached an impasse in an essential
services dispute and referring the dispute to arbitration and
requesting the arbitrator to make an agreement for the parties. The
only dispute that was referred was a dispute concerning a refusal to
bargain.
[33]
This brings me to the concern raised
supra
. Although it is
strictly not necessary for me to decide this issue in light of my
finding that the dispute before the arbitrator
was not the same
dispute that was conciliated, I am nonetheless of the view that it is
necessary to make a few observations in
respect of referrals to
conciliation where compulsory arbitration is the next step. Although
I have indicated that I am of the
view that there is in principle no
reason why a referring party could not rely on a certificate of
outcome issued in terms of section
64(1) of the LRA in referring the
dispute to compulsory arbitration (as holding otherwise may be unduly
formalistic), I am nonetheless
of the view that an employer is
entitled in fairness to some kind of indication that the dispute that
is being subjected to conciliation
is one which also concerns
essential services employees and that the dispute concerns a dispute
that may be referred to compulsory
arbitration in terms of section 74
of the LRA. The power to make a collective agreement in terms of an
arbitration award for the
parties is a far reaching power entrusted
to arbitrators (and commissioners). An employer is therefore in my
view entitled to know
that the referring party is referring a dispute
to conciliation which involves non-essential services employees in
respect of which
such referring party may refer the dispute to
compulsory arbitration. From a practical point of view, parties may
well approach
a conciliation where strike is an option differently
from a conciliation where compulsory arbitration is the next step. I
have
already alluded to the fact that when a dispute about a matter
of mutual interest is referred to compulsory arbitration, the
arbitrator
is called upon to decide the issues for the parties and
make an agreement which will be binding on the parties. This may, in
my
view, well impact on the manner on which the employer approach the
conciliation process as the employer may well be more inclined
to
consider the merits of the demands more seriously in light of the
fact that a failure to accede to the demands may well result
in a
third party imposing an agreement on the parties.
Failure
to comply with time limits
[34]
It was common cause that SAMWU referred the dispute to arbitration in
terms of section 74 of the LRA 72 days after the certificate
of
outcome was issued.
[35]
On behalf of the city it was submitted that the arbitrator’s
finding that the LRA provides no time limit prescribing
the period
within which an interest arbitration must be conducted by a
bargaining council arbitration after the certificate has
been issues
is wrong in law and would, if correct, defeat the object of the LRA.
[36]
On behalf of SAMWU it was argued that there is no particular reason
as to why this period of time ought to constitute an undue
delay
particularly in light of the fact that there was a strike over the
same issues in progress. (I have already pointed out that
I do not
agree with the latter argument namely that the strike was over the
same issues that were the subject matter of the strike.)
[37]
The arbitrator found that section 139 of the LRA – which
requires a commissioner of the CCMA to complete an (essential
service) arbitration (under the auspices of the CCMA) and issue an
arbitration award within 30 days of the date of the certificate
referred to in section 136(1) of the LRA – is not applicable to
essential services arbitration held under the auspices of
a
bargaining council
. The arbitrator thus effectively held that
in the case of an essential services arbitration held under the
auspices of the
bargaining council
there is no time limit
within which a dispute must be referred to arbitration after the
certificate of non resolution was issued.
I am in agreement with the
city that this finding constitutes a material error of law: Firstly,
section 139(1) of the LRA gives
effect to the right of essential
services workers to a speedy arbitration. There is, in my view no
reason why the same policy consideration
should not also apply where
the essential services arbitration is held under the auspices of a
bargaining council. A reading of
section 73(3) of the LRA also
reinforces the view that the legislature recognized that disputes in
essential services be resolved
speedily. In this section the
essential services committee is required to expeditiously determine
disputes about whether or not
a service is an essential service or
not. Secondly, even if it is accepted that section 139 of the LRA is
not directly applicable
to bargaining councils (but only to the
CCMA), it does not necessarily follow that the principle does not
apply. Bargaining councils
are in my view, required to apply the
principle that a party who seeks an essential services arbitration
must refer that dispute
without undue delay. Thirdly, there are
policy considerations why the dispute must be referred without undue
delay. If conditions
of service are to be imposed by an arbitrator in
respect of the essential services component of a workforce, then in
all likelihood
those conditions where they are of general application
to all categories of employees may well be extended by the employer
to non-essential
services employees. See
NEHAWU obo Mofokeng and
Others v Charlotte Theron Children’s Home
[2004] 25
ILJ
2195 (LAC) where the court had to consider the argument that the
court below had erred in coming to the conclusion that the appellant
was required to refer the dispute for adjudication by the Labour
Court within 90 days as required in terms of section 136(1) of
the
LRA. The appellant argued that the dispute had not been referred in
terms of section 136 of the LRA but was referred in terms
of section
10(6)(a) of the Employment Equity Act (an unfair discrimination act).
This section does not require that the dispute
be referred to the
Labour Court within a specific time after the issuing of a
certificate outcome. The LAC followed an interpretation
which held
that the provisions of the LRA as set out in section 36(1) which
required referral within 90 had to be read as it they
were of equal
application in the context of adjudication as envisaged in section 10
of the Employment Equity Act.
[38]
In conclusion therefore, it is, in my view, consistent with the
purpose of the LRA that it was intended that an arbitrator
conducting
an essential services arbitration under the auspices of a bargaining
council must complete and issue an essential services
arbitration
award within a reasonable time of the date on which the certificate
of outcome is issued. Accordingly it was in my
view incumbent to have
complied with the 90 day period. The ruling is therefore also
reviewed and set aside on this ground.
Conclusion
[39]
In the event the ruling by Arbitrator Van Tonder is reviewed and set
aside and replaced with a finding that the first respondent
has no
jurisdiction to hear the dispute. There is no order as to costs.
AC
BASSON, J
Date
of proceedings
: 18 August 2010
Date
or order:
18 August 2010.
Date
of judgment:
12 January 2010.
For
the applicant:
CS
Kahanovitz SC instructed by Webber Wentzel Attorneys
For
the respondent:
Adv
J Whyte instructed by Cheadle Thomson & Haysom
[1]
My emphasis.
[2]
Ibid
.